Not bl**dy likely!

Is it my imagination or are there more reasonable adjustment cases coming through on appeal at the moment? One case recently caught my eye.

The case looked at the application of the exemption found in S 4A(3)(b) of the DDA. This case involved a job applicant who had flagged up her disability but not made any mention of adjustments that she might require at interview. The employer ran lack of knowledge as a defence.

The EAT explained that the words in the statute had to be read together. The Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Act which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:-

(a) does not know that the disabled person has a disability;
(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
(c) could not reasonably be expected to know that the disabled person had a disability; and
(d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

May be not an unsurprising conclusion due to the use of 'and' throughout the section. However for me this was not the most interesting part of the decision. Tucked away in the judgment was another look at the meaning of ‘likely’ (see previous post). The EAT felt that because the words 'might' and 'may' were used elsewhere in the statute that the draftsman must have meant the meaning to be different. The EAT concluded that ‘likely’ in this context did mean something different but did not say what the meaning was.

Sorry to bang on about it but someone is going to come badly unstuck in a higher court in the near future over the meaning of 'likely' in the context of the DDA!

Peter D